Doran v. Ross

Decision Date13 June 1949
Citation221 S.W.2d 756,240 Mo.App. 823
PartiesJames P. Doran, Appellant, v. Dorothy S. Ross, Administratrix of the Estate of Rubin Spivak, Deceased, Respondent
CourtKansas Court of Appeals

Delivered

Appeal from Circuit Court of Jackson County; Hon. Thos. J. Seehorn Judge.

Affirmed.

Walter W. Calvin for appellant.

(1) The trial court, in sustaining the defendant's motion to set aside the verdict, and to grant him a new trial in this cause, committed prejudicial, and reversible, error against the plaintiff herein. The matters and things set forth and alleged in paragraphs 3 and 4 of the defendant's motion for a new trial did not afford a sufficient legal basis for quashing the entire jury panel, or for challenging the array as the same were not embodied in a proper motion, in writing and presented to the court before the jury was sworn, or the trial begun, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The grounds or reasons set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, constituted but a futile attempt to challenge the array since they were wholly and legally insufficient for that purpose, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. The matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial herein, could not, legally and properly, have been presented, except when properly embodied in a challenge to the array, which could only have been interposed, in writing, and by a timely presentation thereof, the court could not, legally, consider the same, or, legally, predicate any ruling thereon; and, for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. Since the matters and things set forth and alleged in paragraphs 3 and 4, of the defendant's motion for a new trial were not in writing, and were not interposed before the jury was sworn, or the trial begun, they afforded no foundation, either in law or in fact, for the court's setting aside verdict and granting the defendant a new trial herein for that reason, the court, in sustaining the defendant's motion for a new trial, for the reasons therein assigned, committed prejudicial and reversible error against the plaintiff. State v. Brennan, 164 Mo. 487, 65 S.W. 325; State v. Church, 199 Mo. 605, 98 S.W. 16; State v. Belknap, (Mo.) 221 S.W. 39; State v. Garrett, 285 Mo. 279, 226 S.W. 4; State v. Vigus, (Mo.) 66 S.W.2d 854; State v. McGee, 336 Mo. 1082, 83 S.W. 2d 98; State v. Darrow, (Mo.) 104 S.W. 2d 249; Massman v. Kansas City Public Service Co., 119 S.W. 2d 833; and, State v. Logan, 334 Mo. 351, 126 S.W. 2d 256, 122 A. L. R. 417. (2) The court had no legal right, power or authority to set aside the verdict, and to grant the defendant a new trial in this cause, because of any irregularities, which, allegedly, occurred, or were committed, in the impaneling of the jury on return day; and, its action, in sustaining the defendant's motion for a new trial, for the reason assigned, not only constituted prejudicial and reversible error, as against the plaintiff, but also constituted, and was, an arbitrary and capricious act on its part, and a gross abuse of its judicial discretion in the premises. Cases, supra.

W. H. Hoffstott, Tom Parrish and Morrison, Nugent, Berger, Hecker & Buck for respondent.

(1) The trial court properly granted defendant a new trial because the jury panel was not selected in accordance with the statutory requirements. Sec. 757, R. S. Mo., 1939 (Amended, Laws 1947, Vol. 1, p. 342); State v. Rouner, 333 Mo. 1236, 64 S.W. 2d 916 (1933); State v. Austin, 183 Mo. 478, 82 S.W. 5 (1904); Berry v. Trunk, 185 Mo.App. 495, 172 S.W. 629 (1915); State v. Clark, 256 S.W. 554 (Mo. App., 1923); State v. Weeden, 133 Mo. 70, 34 S.W. 473 (1896); Massman v. K. C. Pub. Serv. Co., 119 S.W. 2d 833 (Mo. Sup., 1938); Jerabek v. City of St. Joseph, 159 Mo.App. 505, 141 S.W. 456 (1911); People v. Labadie, 66 Mich. 702, 33 N.W. 806; Healy v. People, 177 Ill. 306, 52 N.E. 426; Jones v. State, 3 Blackf. (Ind.) 37. (2) Plaintiff failed to make a submissible case against defendant. Court should enter judgment for defendant, or, court may affirm the trial court upon the ground it should have sustained defendant's motion for a directed verdict. Milazzo v. Kansas City Gas Co., 180 S.W. 2d 1 (Mo. Sup., 1944); State ex rel. Gosselin v. Trimble, 328 Mo. 760, 41 S.W. 2d 801 (1931); Smothers v. Welch & Co. House Furnishing Co., 310 Mo. 144, 274 S.W. 678 (1925); Rohrmoser v. Household Finance Corp., 231 Mo.App. 1188, 86 S.W. 2d 103 (1935); Priest v. F. W. Woolworth Five & Ten Cent Store, 228 Mo.App. 23, 62 S.W. 2d 926 (1933); Peerless Fixture Co. v. Keitel, 355 Mo. 144, 195 S.W. 2d 449 (1946); Sawoski v. Baird, 334 Mo. 951, 69 S.W. 2d 649 (1933); Schreiner v. City of St. Louis, 203 S.W. 2d 678 (Mo. App., 1947); Blanford v. St. Louis Public Service Co., 199 S.W. 2d 887 (Mo. App., 1947); Industrial Loan Co. of Cape Girardeau v. Grisham, 115 S.W. 2d 214 (Mo. App., 1938); Missouri Supreme Court Rule 3.27.

Sperry, C. Boyer, C., concurs.

OPINION
SPERRY

James P. Doran, plaintiff, sued Rubin Spivak, defendant, for damages alleged to have been sustained as a result of an assault and battery committed by one Stewart, manager of a hotel operated by defendant, while plaintiff was a guest in said hotel. The jury returned a verdict for plaintiff for $ 2000 actual and $ 1000 punitive damages, the full amount sued for. The court granted a new trial on defendant's motion and plaintiff appeals. Mr. Spivak has since died and, on this appeal, his administratrix is the respondent.

One of the grounds stated by defendant in his motion for new trial is that a deputy sheriff, instead of the judge who was authorized to do so, excused from service a large number of jurors who constituted a part of the regular panel selected for service at the session of court at which this case was tried, in violation of the statutes regulating the empanelling of jurors; that defendant had no knowledge of such procedure and statutory violation until after the trial of this cause had been completed; and that, therefore, defendant had no opportunity, previous to the filing of his motion for new trial, to object to, or to challenge, the panel. The court granted a new trial on this ground.

Section 757, Amended Laws, 1947, Vol. 1, page 342, provides as follows:

"Where the circuit court is composed of more than one division except as hereinafter provided, one general panel of jurors shall be drawn for all civil or criminal divisions, the number of names to be drawn for such general panel to be determined by the judge designated by a majority of said judges of said court. Said panel shall be drawn and summoned as provided in sections 758 and 761 of this act, and all jurors so summoned shall appear before said judge of said circuit court, which said judge shall hear and determine all excuses of said jurors. No clerk, deputy, lawyer or other officer of court may in any manner assist or aid any juror so summoned in presenting any excuses that said juror may have to avoid service." (Emphasis ours).

The facts with respect to excusing jurors from service, in this case, are as follows: The circuit judge, who had been properly designated as the one before whom all jurors summoned for service should appear and present their excuses and have same determined by him, was busy with other matters on the morning that the members of the panel reported. He passed the "bull pen," where said jurors were awaiting further instructions, and noticed that there was an unusually large number present, probably 225 or 250, far more than probably would be needed. He instructed the deputy sheriff, who attends his court, to call the roll of jurors and to "let everybody off that wanted off, that did not want to serve on the jury, over the number of approximately 155." The evidence is to the effect that the deputy, so instructed, proceeded to carry out the judge's instructions in this respect, and that he excused every one on the panel who did not want to serve. This action was taken entirely outside of the presence of the judge who was, at the time, in his chambers. After a large number of jurors were so excused from the panel the number left for service was about 150 or 155.

Defendant does not suggest that any one participating in, or responsible in any manner for, the proceedings herein mentioned, acted with an improper or wrong motive. Defendant simply contends that, since the provisions of the statute admittedly were not followed, the panel is an unlawful panel; and that the members thereof, before whom this case was tried were, in effect, nothing more than volunteers, lacking any legal status or authority.

There can be no question but that the procedure followed, with reference to excusing members of the jury panel, was not in conformity with the provisions of the statute. Plaintiff contends, however, that a challenge to the array, based on illegality in the selection of the jury panel, must be made in writing...

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